No: 201001509/1500/1505/D4 
Neutral Citation Number: [2010] EWCA Crim 3078
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL

Wednesday, 17 November 2010

B e f o r e:

LORD JUSTICE LAWS 

MR JUSTICE BLAKE 
THE RECORDER OF BRIGHTON AND HOVE
(His Honour Judge Richard Brown DL) 
(Sitting as a Judge of the Court of Appeal Criminal Division) 
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R E G I N A 

v 

SARBAZ HUSSAIN ABDULLAH
FERAS SAAD 
DAOUD KHAN 
 
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Mr I Shafi appeared on behalf of the Appellants Abdullah and Saad
Mr B Singh appeared on behalf of the Appellant Khan
Mr R Jameson QC appeared on behalf of the Crown
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J U D G M E N T
1.	LORD JUSTICE LAWS:  These three appellants faced an indictment which in its final form contained eight counts.  On 6 November 2009 at the Sheffield Crown Court before His Honour Judge Goldsack QC the appellant Khan pleaded guilty to count 1 (conspiracy to kidnap), count 6 (intimidation) and count 8 (possessing a firearm with intent to endanger life).  On 11 February 2010 in the same court Saad and Abdullah were convicted on count 1.  On 12 February 2010 Judge Goldsack passed sentence on all three as follows: Khan, concurrent terms of imprisonment for public protection with a specified minimum term of eight years on counts 1 and 8, these years concurrent on count 6; Saad seven years; Abdullah six years.  The Crown offered no evidence against Khan on a count of attempted murder and an offence of possessing a prohibited weapon was ordered to be left on the file in his case.  
2.	There were five co‑defendants.  Kochki was acquitted on count 1, after the jury disagreed and the Crown offered no evidence.  Moss was acquitted by the jury on count 1.  Mullings was acquitted on count 1 by direction of the judge.  She was acquitted of other offences also which we need not specify.  Ahmed was acquitted on count 6 by direction of the judge at a separate trial.  Count 7 (perverting the course of justice) was ordered to lie on the file in the case of the co‑defendant Jamieson who alone was charged on that count.  
3.	Saad and Abdullah now appeal against their conviction on count 1 by leave of the single judge.  Abdullah also seeks an extension of time within which to renew his application for leave to appeal against sentence after refusal by the single judge.  Khan appeals against sentence by leave of the single judge. 
4.	The complainant, Mark Morris, was a man of bad character.  On 27 February 2009 he was recruited by Khan to courier some 15 kilogrammes of skunk cannabis from Birmingham to Middlesborough.  They went together to Birmingham.  Khan left the drugs with Morris and drove back to Middlesborough.  Morris was to return there the next day.  Instead he contacted an associate, Carl Rennie, and he and Rennie drove to Sheffield with the drugs on 28 February 2009; so Khan was double‑crossed.  Morris and Rennie set about disposing of the drugs.  To this end Morris arranged to meet the co‑defendant Tristan Moss on Sunday 1 March at the Tesco stores in the Shirecliffe area of Sheffield.  Accompanied by others, Morris went there by taxi arriving about 6 o'clock in the evening.  
5.	Meanwhile Khan realised he had been double‑crossed.  He discovered that Morris was in Sheffield.  On Sunday 1 March he, Saad and the co‑defendant Kochki set out for Sheffield.  The Crown's case was that Morris was kidnapped on 1 March outside Tesco.  Khan had been in touch with Moss by phone to facilitate a meeting with Morris.  Moss's evidence was to be that Khan assured him that nothing bad would happen to Morris.  At the Tesco car park, said Moss, Moss got into a car being driven by a Kurdish male.  Morris also got into the car.  It was driven off at speed.  Moss said that Morris asked him what was going on and he answered he did not know.  The car stopped in Melinda Street.  About four people, according to Moss, were waiting there, one of whom aggressively pulled Moss out of the car.  
6.	The judge summing up reminded the jury of Moss's evidence:
"I didn't realise Morris was to be kidnapped.  I thought I would buy my weed and then Morris would sort out his problems with this other man."
7.	Morris was to identify Abdullah as the man who pulled Moss from the car.  Morris was also to say that both Khan and Saad were amongst his kidnappers.  He said that he was transferred by Khan and Saad into Khan's BMW car and taken to a flat in Lopham Street.  This was Abdullah's home.  Khan held a gun to his head.  He was told to phone Rennie.  He went to a meeting with Rennie accompanied by Khan, Saad and Abdullah.  He saw Rennie in his car.  Khan pulled out a gun and fired it at the car (that was count 8).  Rennie drove off.  After this Morris was made to phone Rennie.  Khan spoke to Rennie, saying he wanted his stuff back by 3.00 am or Morris would lose a finger.  Morris was then taken to a different address in Rotherham and locked in a cupboard for 20 minutes.  In the middle of the night, according to Moss, Rennie dropped off the drugs at the pre‑arranged spot and Morris picked them up on instructions.  He returned to the Rotherham address.  He was taken by car to a hotel where he spent the rest of the night with Khan with a bed placed behind the door.  He was returned to the earlier address in Rotherham and again put in a cupboard.  He was driven to Middlesborough in Khan's BMW.   He was taken to various locations, including the house of Saad, from which he succeeded in escaping and went to the house of a man called Ruffit.
8.	On 6 March 2009 Morris gave a video identification of Saad.  On 7 March he was admitted to hospital with appendicitis.  Khan phoned him there and told him not to identify anyone on an identification parade: he would be paid if he obeyed that instruction (count 6).  A police officer witnessed Khan about to enter the hospital and Khan drove away.
9.	On 1 April 2009 Morris identified Abdullah as one of the kidnappers.  The bullet fired at Rennie's car was recovered by police.  It had passed close to Rennie's head.  Other salient features of the evidence included traces of Morris's saliva and DNA in Khan's motor car.  He had apparently spat on the floor in order to leave traces of himself.  There was also evidence relied on by the appellant Saad of acts of kindness by Saad towards Morris.
10.	Saad and Abdullah both gave evidence to the effect that Morris was not actually kidnapped at all; or, if he was, they were unaware of it and took no part in it.
11.	At the trial of Saad and Abdullah the Crown applied to the judge for leave to adduce before the jury evidence of Khan's conviction, notably in the form of his plea of guilty to count 1, the conspiracy charge.  The defence objected to that latter piece of evidence going in.  It was accepted that the conviction was _prima facie_ admissible, but it was submitted that its admission would render the trial unfair and so it should be excluded under section 78 of Police and Criminal Evidence Act 1984.  The judge admitted the evidence.  
12.	It is well established that such a ruling should only be reversed in this court if no judge could reasonably have made it or it was made on a false basis: see, for example, Smith [2007] EWCA Crim 2105, per Hughes LJ at paragraph 23.  
13.	Giving his ruling, the trial judge in this case said this:
"The prosecution seek to adduce the conviction for two purposes: to prove that DK [Daoud Khan] committed the offence and to provide support for Morris's evidence, they accepting that he is not a witness on whose evidence a jury would be likely to convict without some support.
It is the prosecution's intention to amend the conspiracy count to allege 'and with others unknown'.   That will remove the risk of a jury taking the view that at least one of the remaining accused must be guilty.  A jury can be directed quite simply that the conviction of DK does not in itself help in any way as to whether any of the accused on trial are guilty of the conspiracy count.  Although it does prove DK committed the offence ‑‑ that is 'until the contrary is proved', section 74(2) [that is a reference to section 74 of the Police and Criminal Evidence Act] ‑‑ it will not prevent those accused who do not accept a kidnapping occurred from testing the prosecution evidence or calling their own so as to submit that in fact the jury cannot be sure DK was guilty.
So far as the circumstances of the pleas are concerned, leading counsel for the prosecution makes two points: they were on a full facts basis and the charge faced by DK until quite a late stage had in fact been possession of a firearm with intent and the defence will be at liberty to raise the circumstances in the course of the trial, he having frankly acknowledged that the pleas were in fact tendered on the basis that the count against his girlfriend would not be proceeded with. 
... 
The convictions are admissible unless they should be excluded under section 78.  I bear very much in mind that a balancing exercise is required and fairness means fairness to both sides and to each accused and doing what the interest of justice require.  
In my judgment the interests of justice here require that the jury hear the evidence of all the convictions; properly and carefully directed the jury will then be able to reach proper conclusions based on all relevant evidence."
14.	After the jury retired on 9 February 2010 the judge and counsel for the first time had sight of the pre‑sentence report relating to Khan.  Khan had told the probation officer that he was innocent of the conspiracy to kidnap charge.  Counsel for Saad and Abdullah submitted that in the light of this the jury should be discharged, or at least that their deliberations should be suspended until the court had heard from counsel for Khan.  It was said the jury had been inadvertently misled.  
15.	The judge disagreed.  He considered that there was no force in the submission that the jury had been misled.  The case for both appellants had been made entirely clear to the jury, namely they did not accept there was a kidnap despite Khan's plea.  It was a common occurrence for defendants to demur from their plea during a probation interview only to confirm their plea come sentencing.  Khan had unequivocally pleaded guilty upon the advice of experienced counsel.  The discovery of what he said in his probation interview did not affect the position in the trial.
16.	It is now submitted in support of the appeals against conviction that the judge should not have admitted Khan's plea to count 1.  There was in the written submissions an alternative argument to the effect that the judge was wrong not to discharge the jury in the light of the contents of Khan's pre‑sentence report.  However Mr Shafi this morning has, if we may be allowed to say so, very sensibly indicated he does not rely on that proposition as a self‑standing head of argument.
17.	The learning shows that the discretion to admit a conviction of another against a co‑accused on the same charge should only be exercised sparingly, especially in relation to joint defences such as conspiracy: see, for example, Curry [1988] Crim LR 527.  
18.	The appellants and the Crown have both referred to the case of Smith [2007] EWCA Crim 2105 which we have mentioned in passing.  In that case Hughes LJ said this at paragraph 16:
"We have been taken to the line of cases which begins with R v O'Connor [1987] 85 C App R 98.  They are well known; we need not review all of them.  We should, however, refer to the helpful distillation of many of them in R v Kempster [1990] 90 Cr App R 14 in the judgment of Staughton LJ.  That line of cases indicates that section 74 should be sparingly applied.  The reason is because the evidence that a now absent co‑accused has pleaded guilty may carry in the minds of the jury enormous weight, but it is nevertheless evidence which cannot properly be tested in the trial of the remaining defendant.  That is particularly so where the issue is such that the absent co‑defendant who has pleaded guilty could not, or scarcely could, be guilty of the offence unless the present defendant were also.  In both those situations the court needs to consider with considerable care whether the evidence of the conviction would have a disproportionate and unfair effect upon the trial.  With those cases can be contrasted the kind of case in which there is little or no issue that the offence was committed, and the real live issue is whether the present defendant was party to it or not.  In those circumstances, commonly, the pleas of guilty of other co‑defendants can properly be admitted to reinforce the evidence that the offence did occur, leaving the jury independently to consider whether the guilt of the present defendant is additionally proved."
19.	In admitting Khan's conviction the judge here was plainly not acting on a mistaken basis.  The question therefore is, was his decision to admit the conviction so unreasonable as to justify this court's interference?  In our judgment the following points arise.
20.	1.  It was not a necessary inference from Khan's plea that either Saad or Abdullah was involved in the conspiracy.  Count 1 alleged, as we have noted, conspiracy by the named defendants and persons unknown.  The judge had himself suggested or required that it be amended to make that allegation.
21.	2.  Moreover, while Saad and Abdullah by no means abandoned their contention that there had been no kidnapping at all, that issue became something of a dead letter after the evidence of the co‑defendant Moss, who plainly testified that Morris had been kidnapped.  Moss did not identify any of the kidnappers except Khan.  He was not cross‑examined on the issue of kidnap or no on behalf of Saad or Abdullah, no doubt for perfectly good reasons.  Thus Moss gave clear evidence of the fact of kidnap quite independently of Khan's plea of guilty.  Mr Shafi takes issue with an observation in counsel for the Crown's skeleton argument to the effect that the issue of kidnap was not conclusively determined by Khan's plea.  As to that, no doubt the plea was strong and central evidence of the fact of kidnap; but there was other evidence also.
22.	3.  Moreover it is plainly likely, and Mr Shafi accepts this, that the jury accepted Moss's evidence.  They acquitted him and so presumably accepted, or did not reject, his evidence that he was not involved in the kidnap.  That being so they are no less likely to have accepted his evidence that Morris was in fact kidnapped.
23.	4.  Given that there was a kidnap, the real issue in the case ‑‑ were Saad and Abdullah involved? ‑‑ was not closed off or determined by Khan's plea.  The acquittal of Ahmed, jointly charged with Khan on the intimidation count (count 6), and the jury's disagreement in relation to the co‑defendant Kochki on count 1, demonstrate to our mind that the jury did not necessarily associate Khan's guilt with his co‑accused on any given count.  It is of course right, as Mr Shafi submitted this morning, that the case against Ahmed and Khan on count 6 arose in very different circumstances from the facts of count 1.  Nevertheless it seems to us that the general points remain.
24.	5. Mr Shafi helpfully told us this morning that the jury were told that Khan had been charged with a greater offence, that of attempted murder, and, of course, pleaded to a lesser offence; and they were told also the background relating to charges against Khan's girlfriend.  It follows that any points that may properly have been made as to the circumstances of Khan's plea were available to be made.
25.	In all the circumstances we have concluded that the judge's decision to admit the evidence of Khan's plea was a reasonable and proper one.  That being so, and bearing in mind as we have said that Mr Shafi takes no separate point as to the refusal to discharge the jury in the light of Khan's pre‑sentence report, the appeals against conviction must fall to be dismissed.  That leaves the matter of sentence.  
26.	We turn then to the matters relating to sentence: Khan's appeal and Abdullah's application.  We deal first with Khan.  He is a man of 31 with eight previous offences including one offence of section 20 wounding for which he received a sentence of 18‑months imprisonment in 2001.  The pre‑sentence report in his case stated that there was a serious risk of harm to individuals and the public.  He was the prime mover in the kidnap, whose facts are set out in our conviction judgment and which we do not repeat.
27.	The kidnap was a sustained, cold‑blooded, vicious affair.  He shot at the man Rennie in the latter's car.  Mr Singh has urged on us that the basis of his plea to the firearm offence was that he used the gun with intent to frighten only.  That is, with respect to Mr Singh, inconsistent with his plea of guilty which was to an offence of possessing a firearm with intent to endanger life.  In the course of his sentencing remarks the learned judge indicated that Mr Khan had now accepted again a basis of plea consistent with the offence to which he had pleaded guilty.  On top of all this Khan intimidated Mr Morris when Mr Morris was in hospital.
28.	In our judgment the finding of dangerousness necessary for an IPP sentence was well justified here.  However, there is something in Mr Singh's argument as regards the minimum term.  It will be recalled that the judge imposed a term of eight years.  That implies a starting point as high as 27 years if the judge meant to give, or should have given, maximum credit for plea.  That is too high notwithstanding the fact that determinate sentences, had they been appropriate in principle, could well have been passed on the basis that consecutive sentences for the firearm and kidnapping offences were justified.
29.	We consider that the minimum term should be reduced to seven years from eight.  We will accordingly quash the judge's order that he serve a minimum period of eight years and substitute a period of seven years.  The IPP otherwise remains.
30.	As for Abdullah, as Mr Shafi frankly acknowledges, it is very difficult to complain of a sentence of six years for an offence of conspiracy to kidnap after a contested trial.  It is right, as Mr Shafi has said, that there is nothing to show that this applicant had previously been involved with the drugs business; but he was an active participant in this very serious conspiracy.  We see no basis on which it can be said that six years was arguably improper.  His application for leave to appeal against sentence will be refused.
31.	MR SINGH:  My Lord, may I clarify one point in relation to the seven years?  Is that intended to take account of the year served on remand or not?  There was almost a year served on remand. 
32.	LORD JUSTICE LAWS:  As I understand it, he gets that off, doesn't he?  
33.	MR SINGH:  No, not automatically.  Not in an indeterminate sentence.  That applies to an determinate sentence. 
34.	LORD JUSTICE LAWS:  What did the judge say in relation to the eight years?
35.	MR SINGH:  He took that into account and fixed eight from the date of sentence. 
(pause while the bench conferred) 
36.	LORD JUSTICE LAWS:  The sentence of seven years is intended by us to operate on the same basis and in the same way as the judge's eight year sentence did.  I am sorry if we did not make that clear.
37.	MR SHAFI:  I think in respect of Ahmed it was said he was acquitted on the direction of the learned Recorder.  No case to answer.
38.	LORD JUSTICE LAWS:  Yes, as I think I said when describing the facts of the case.
39.	MR SHAFI:  I am sorry, nothing turns on it. 
40.	LORD JUSTICE LAWS:  No, but one wants the transcript to be accurate.  Yes, my note, which I think I read out, was Ahmed was acquitted on count 6 by direction of the judge at a separate trial.  Thank you.